U.S. District Court Judge Myron Thompson of Alabama has an op-ed in the New York Times, Sentencing and Sensibility on the recent Booker and FanFan decisions.

... amid the confusion that will undoubtedly follow this decision, we should keep in mind one basic principle: neither consistency nor codification guarantees justice. While few if any are calling for a return to the practically unfettered discretion that judges had before the sentencing guidelines came into effect, the nuances of individual cases necessitate a certain fluidity in imposing punishment. Congress should seek to shape judicial discretion, not to lock it in a vise.

Martha Stewart indeed is becoming a prisoner's rights advocate. Welcome, Martha.

Following the Supreme Court's decision in Booker last week, Martha sent an e-mail to Wall St. Journal reporter Laurie Cohen. (subscription only.) The gist: Martha thinks the decision will result in many inmates becoming severely depressed. So many had high hopes for Booker...thinking if the guidelines were thrown out, they would get shorter sentences. Particularly in federal camps like Alderson, where Martha is, most of the prisoners are first time, non-violent offenders. Some are serving long sentences, due to the guidelines.

by TChris

In the brave new world of federal sentencing post-Booker, a judge's discretion to impose the sentence the judge deems "just" has expanded. While years may pass as courts struggle to define the limits of that expansion, individual defendants may benefit or suffer as a result of the broadened authority that judges will wield.

Judges who want to sentence more harshly than the guidelines would permit may now have that power. Judges sometimes comment at sentencing that they would exceed the guidelines if they could: now they may have that chance. Judges are constrained by an appellate court's review of the "reasonableness" of the sentence, but the degree of deference owed to judges who exceed the guidelines is likely to be hotly contested, and may provoke disagreement among the circuits.

On the other hand, judges who oppose the unjustly harsh sentences that the guidelines often mandate seem to have a new opportunity to tailor sentences to the unique circumstances of each case. The limits of discretion are again unclear, and the Justice Department complains that this discretion will lead to varying sentences for similar crimes. We can hope that judges will agree with this editorial:

A foolish uniformity isn't fair. Yet that is what the guidelines had been producing. And that is why a federal judge in New York resigned in protest in 2003, calling the guidelines "unnecessarily cruel and rigid."

And we can join this editorial in urging Congress not react to Booker with its usual "tough-on-crime chest-thumping" by enacting more mandatory minimums. (Other editorials striking the same note: here and here and here.)

U.S. District Court Judge Paul Cassell has rushed to press with the first post-Booker decision and it's awful. You can read it here. As one lawyer e-mailed us, "Read it and Weep. The radical right has been planning for this." Two paragraphs in Cassell's opinion tell the story:

To be sure, reasonable minds may differ about whether the Guidelines are the best standard against which to measure the fairness of sentences. It is no secret that some judges believe sentences are too harsh, although the degree of judicial dissatisfaction with the Guidelines is easy to overstate.81 The fundamental fact remains, however, that the Guidelines are the only standard available to all judges around the country today. For that reason alone, the Guidelines should be followed in all but the most exceptional cases.

For all these reasons, the court concludes that in exercising its discretion in imposing sentences, the court will give heavy weight to the recommended Guidelines sentence in determining what sentence is appropriate. The court, in the exercise of its discretion, will only deviate from those Guidelines in unusual cases for clearly identified and persuasive reasons. This is the only course that implements the congressionally-mandated purposes behind imposing criminal sentences.”

The U.S. Sentencing Commission has issued this statement on yesterday's Supreme Court decision in Booker and FanFan.

Also, Maine Criminal Justice Act Counsel David Benneman has some practical thoughts on the decisions that he has allowed us to disseminate. [link fixed now.]

The Capital Times has a nice article on Booker, with reference to Booker's defense attorney, Chris Kelly, known on TalkLeft where we are ever grateful for his excellent blogging contributions, as TChris.

TChris is still in trial in Green Bay, but check back over the weekend for his comments.

So who can seek relief after today's decisions in Booker and Fan Fan? And will they get anything? I hate to dash hopes, but my intial impression is that it doesn't look very promising for the vast number of defendants out there, although there will be a lot of litigation engendered by the decision. Justice Breyer writes for the Court:

As these dispositions indicate, we must apply today's holdings--both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act--- to all cases on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). ....

Some thoughts on a first read of the opinions:

Justice Stevens opinion contains the legal conclusion affirming the Court's prior ruling in Blakely and explains why judges may not increase sentences beyond what the guidelines call for based on facts not submitted to the jury. (Shorthand reason: it violates the 6th Amendment right to have a jury decide guilt beyond a reasonable doubt since judges use a lesser standard of preponderance of the evidence).

Justice Breyer's opinion discusses whether the Guidelines can be saved or must be scrapped - the remedy, if you will. First, the decisions invalidate only two provisions of the Sentencing Statute: They are 18 USC Sec. 3553 (b)(1) and 3742(e). The first makes the guidelines mandatory and the second relates to the standard of review for appeal of departure rulings. [From now on, the standard of review for reviewing departures will be the standard of 'reasonableness' instead of 'de novo'.]

The Supreme Court ruled today in the Booker and Fan Fan cases and the validity of the U.S. Sentencing Guidelines. [scroll down for links to opinions] In Booker (the case in which the defendant is represented by TalkLeft's contributing blogger TChris, who also argued the case before the High Court), the Court ruled against the Government and in favor of TChris's client. Congratulations, TChris.

Justice Stevens opinion addresses the first question on appeal, whether Blakely should be affirmed, and the Court agrees it should. Justice Breyer answers the second question as to whether the Guidelines are constitutional. Essentially, they aren't, but the invalid parts can be excised and the remainder can stay as advisory but not mandatory.

The Supreme Court ruled Tuesday that federal judges have been improperly adding time to criminals' sentences, a decision that puts in doubt longtime sentencing rules. The court, on a 5-4 vote, said that its ruling last June that juries - not judges - should consider factors that can add years to defendants' prison sentences applies as well to the 17-year-old federal guideline system.

The justices refused to backtrack from a 5-4 decision that struck down a state sentencing system because it gave judges too much leeway in sentencing. But the high court stopped short of striking down the federal system.

So what are the implications for everyone else? Justice Breyer in his opinion said the Guidelines are not mandatory, but Courts must consider them when sentencing. I'll add the link to the opinions as soon as they are in, but here's the gist of the rulings from Scotus Blog:

Update: No decision today in Booker or FanFan--it will be January at the earliest.

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The potentially biggest criminal law decision in the past 20 years could come down this morning from the Supreme Court. Booker and Fanfan will determine the fate of the U.S. Sentencing Guidelines in the post-Blakely nation.

It may not be good news, either way. If the Supreme Court invalidates the guidelines, many think Congress already has the bills drafted to create mandatory minimum sentences for every federal crime.

TalkLeft's frequent contributing blogger TChris is counsel for Mr. Booker and argued the case in the Supreme Court. He must be on pins and needles....Good luck, TChris. He did an outstanding job for his client.

Check in with Law Prof Doug Berman at Sentencing Law and Policy for late-breaking developments. ScotusBlog and How Appealing as well.

Law Prof Doug Berman at Sentencing Law and Policy reports today may be the day the Supreme Court issues its long-awaited post-Blakely decision on the Federal Sentencing Guidelines in the Booker and Fan Fan Cases. TChris, who argued the Booker case for the defense in the High Court, must be on pins and needles. So are defense attorneys and inmates around the country. Will the Guidelines be invalidated, in whole or in part? Prof. Berman reprints a poem from a reader in anticipation of the decision:

'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.

Here's Prof. Berman's guide to get you back up to speed. All our coverage is here. Good luck, TChris.

Update: No decision today.

Earlier we linked to law bloggers' reactions to today's oral arguments on the federal sentencing system. Tonight, the mainstream media weighs in. Court-blogging might be a little like convention-blogging--the blogs are long on enthusiasm, personal impressions and minor details the mainstream press might overlook, but short on providing "just the facts." For the latter, check out the New York Times article, Justices Show Inclination to Scrap Sentencing Rules.